Defendant was convicted on 13 counts of first degree robbery (Pen. Code, §§ 211, 211a), two counts of kidnaping for the purpose of robbery without bodily harm (Pen. Code, § 209), and one count of murder committed during one of the robberies (Pen. Code, § 189). The jury fixed the punishment at death on the murder count. The court sentenced defendant to prison for the term prescribed by law on the robbery and kidnaping counts and to death on the *143murder count. On a prior appeal, we affirmed the judgment on the issue of guilt but reversed on the issue of penalty. (People v. Treloar, 61 Cal.2d 544, 550 [39 Cal.Rptr. 386, 393 P.2d 698].) On retrial the jury again fixed the penalty at death. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)
The facts with respect to the commission of the crimes were summarized in our former opinion and need not be repeated. (People v. Treloar, supra, 61 Cal.2d at pp. 545-546.)
After he was arrested and taken to the police station, defendant was questioned intensively. Tavo complete confessions, in which he gave full details concerning the robberies and the murder, Avere solicited by the police and were introduced into evidence against him at the trial on the issue of guilt and at the subsequent penalty trials.
Confessions are not admissible if they Avere obtained Avhen “ (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect Avas in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he Avaived these rights.” (People v. Dorado, 62 Cal.2d 338, 353-354 [42 Cal.Rptr. 169, 398 P.2d 361]; Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977].) It is conceded that at no time was defendant advised of these rights before he gave the confessions. The confessions should therefore have been excluded.
In In re Spencer, 63 Cal.2d 400 [46 Cal.Rptr. 753, 406 P.2d 33], and People v. Polk, 63 Cal.2d 443 [47 Cal.Rptr. 1, 406 P.2d 641], we held that by virtue of Linkletter v. Walker, 381 U.S. 618, 622 [85 S.Ct. 1731, 14 L.Ed.2d 601], footnote 5, a defendant may invoke Escobedo to attack a final judgment on the issue of guilt in a subsequent proceeding relating to penalty, if the judgment on the issue of guilt was not final Avhen Escobedo was decided and if the defendant liad no opportunity to raise the constitutional issue at trial and on appeal. The judgment against defendant on the issue of guilt did not become final until 30 days after it Avas affirmed by this court on July 14, 1964, approximately three Aveeks after Escobedo Avas decided. Under the law applicable at the time the appeal Avas briefed and argued, no question could have been raised on Escobedo grounds. Defen*144dant did not waive his Escobedo claims by failure of counsel to call the attention of this court to the significance of that ease by supplemental brief or petition for rehearing in the few weeks between the decision in Escobedo and the time our judgment became final. Under the circumstances, defendant did not have a realistic opportunity to invoke the Escobedo case in his earlier appeal. There was not, therefore, such a deliberate bypassing of orderly state procedures as would justify a denial of collateral relief in the federal courts (see Fay v. Noia, 372 U.S. 391, 438, 439 [83 S.Ct. 822, 9 L.Ed.2d 837]), and here, as in the Polk and Spencer cases, our practice on collateral attack compels the granting of relief.
Since the violation of Escobedo compels reversal of the judgment on the issue of guilt on all counts,1 the judgment on the issue of penalty must necessarily be reversed.2
Other questions remain that may arise on retrial.
*145At the retrial on the issue of penalty the prosecution introduced police testimony describing statements made by defendant before he was brought to the police station for booking. These statements were not offered at the trial on the *146issue of guilt, but they may be offered on a retrial of that issue.
Defendant was arrested in Los Angeles on March 27, 1962. As the arresting officer reached to disarm him, defendant exclaimed, “You have the right man’’ and “This is the gun I had. ’ ’ These remarks will be referred to as defendant’s first statement. In the police car, he initiated a conversation with one of the officers. He volunteered that had the police been a few minutes late in arresting him he would not have been caught, as he was planning to leave for South America. He asked how long Rivard, the murder victim, had lived. These remarks will be referred to as defendant’s second statement. The officer replied and then asked, “What happened to the guy [the victim] in Farah’s bar?” Defendant responded that “he tried to be a hero,” and, when requested to explain, continued, “the guy wouldn’t do what he was told.” These remarks will be referred to as the third statement.
These three statements are admissible. When they were made, three of the four conditions of Escobedo and Dorado necessary to attain the vital accusatory stage had been met, but the condition that the statements be the result of a “process of interrogations that lends itself to eliciting incriminating statements” (People v. Stewart, 62 Cal.2d 571, 577 [43 Cal.Rptr. 201, 400 P.2d 97]; People v. Dorado, supra, 62 Cal.2d at p. 353; Escobedo v. Illinois, supra, 378 U.S. at p. 491) had not been met. The test whether a prohibited process of interrogations has been undertaken is objective. “Whatever may be the,subjective intent of the interrogators, we must . . . analyze' the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.” (People v. Stewart, supra, at p. 579.) As we explained in In re Lopez, 62 Cal.2d 368 [42 Cal.Rptr. 188, 398 P.2d 380], the United States Supreme Court in Escobedo “sought to eliminate conditions which invited coerced confessions”; it “sought primarily to prevent police tactics which, in the past, have spawned involuntary confessions.” (62 Cal.2d at pp. 372-373.) In People v. Cotter, 63 Cal.2d 386 [46 Cal.Rptr. 622, 405 P.2d 862], we pointed out that an analysis of Escobedo, Dorado, and Stewart, supra, makes it clear that those cases were primarily aimed at preventing police officers from employing “inquisitorial techniques in seeking to prove the charge *147against the accused out of his own mouth.” (63 Cal.2d at p. 393.) The facts of the cases decided by this court that compelled reversal under Escobedo demonstrated that the police had attempted a process of sustained and accusatory inquiries, resulting in active, if sometimes subtle, pressure upon the accused to incriminate himself.
It is evident that defendant’s first statement, made immediately upon his arrest, was entirely spontaneous and in no way elicited by the police. Defendant’s second statement was also spontaneous. The third statement was given in response to an officer’s question, but the circumstances under which the statement was made were unlike the “total situation” in the Escobedo case and the cases following it in four crucial respects: (1) defendant had been in police custody for a few minutes only and was in the process of being promptly taken to the police station ; (2) the questioning was initiated by defendant, and the statement was volunteered in response to a neutral inquiry invited by defendant’s own remarks; (3) the conduct of the police was neither intimidating nor accusatory, nor did it appear in any way designed to elicit incriminating statements; (4) defendant had virtually confessed in his earlier statements. There was thus no inquisitorial pressure, subtle or blunt, asserted against defendant and designed “to prove the charge against the accused out of his own mouth.” (People v. Cotter, supra, at p. 393.)
Other questions raised are not likely to arise on retrial.
The remittitur issued in Crim. No. 7352, People v. Treloar, 61 Cal.2d 544 [39 Cal.Rptr. 386, 393 P.2d 698], is recalled and the judgment of the Supreme Court of July 14, 1964, vacated. The judgment appealed from is reversed in its entirety.
Peters, J., Tobriner, J., and Peek, J., concurred.The Attorney General contends that because defendant cross-examined only sixteen of the thirty-six prosecution witnesses and cross-examined those sixteen only briefly, because he did not testify and did not call any witnesses on his behalf, and because he waived argument to the jury, his conduct at the trial on the issue of guilt amounted to a “slow plea of guilty,” making applicable our decision in In re Seiterle, 61 Cal.2d 651 [39 Cal.Rptr. 716, 394 P.2d 556]. In that case we said that “we need not consider whether the confession was improperly obtained under the rules announced in recent decisions. . . . Assuming that Seiterle's confession was obtained in violation of those rules, it was not used to convict him; his conviction was based on his plea of guilty.” (Id. at p. 657.) The Attorney General cites no authority for his novel contention, and we. find no merit in it. A plea of guilty is “the equivalent of a conviction of the crime. [Citations.] It amounts to an admission of every element of the crime charged. [Citations.] Thus after a plea of guilty properly received the prosecutions under no duty to prove that [defendant] committed the crime.” (People v. Jones (1959) 52 Cal.2d 636, 651 [343 P.2d 577].) After a plea of guilty a defendant may not question the admissibility of evidence (In re Seiterle, supra). Such consequences do not ensue, however, when a plea of not guilty has been entered. Defendant did not waive the right to challenge the confessions on Escoledo grounds merely because the conduct of his defense was not as vigorous as perhaps it might have been.
The judgment on the issue of penalty would have to be reversed even if such reversal were not compelled by the reversal of the judgment on the issue of guilt. In his argument to the jury the district attorney asserted several times that a primary consideration for the jury was the right of society to protection. He contended that “in 1950 and up to 1957 defendant was subjected to the rehabilitative processes of the state prison system, the Department of Corrections, and was he rehabilitated in 1962? If that is the kind of rehabilitation there is, I think the word should have its meaning changed in the dictionary. [I]f the type of rehabilitation they had back in those days was as effective as it appeared on this defendant, anything would be better. But how much better?” He stated to the jury that if it felt that life imprisonment, “carrying with it the availability of rehabilitation, will not accomplish its purpose, then . . . the death penalty is the appropriate penalty. ’ ’ In discussing opinion evidence introduced by defendant on the *145question of rehabilitation, the district attorney went on to argue: “ [T]he stakes are too high for possibilities. I don’t want to gamble like that and you . . . should likewise not want to gamble. I want probabilities. . . .
‘ ‘ There is nothing that can be done with him that hasn’t been tried and proved unsuccessful. If you want to try it again, the gamble is too great. Nobody has come forward and said that defendant probably would be rehabilitated . . . the odds are too long. ... I don’t like that gamble. ’ ’
In People v. Morse, 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33], we disapproved of prosecution attempts to "emphasize to the jury the possibility of error by the Adult Authority and the potential grievous harm that might result from the inadvertent parole of a defendant convicted of murder.” (Id. at pp. 638-639.) We stated that “The function of the jury is to consider the facts surrounding the crime and the defendant’s background, and upon that basis, reach its decision. The jury should not be invited to decide if the defendant will be fit for release in the future; it should not at all be involved in the issue of the time, if any, when the defendant should be released; it should not be propelled into weighing the possible consequences of the Authority’s administrative action.” (Id. at p. 643.)
We also stated in Morse that the jury is “entitled to weigh psychiatric and other testimony as to [defendant’s] susceptibility to rehabilitation and reformation,” but we admonished that the jury “should not . . . attempt to appraise whether at some future date the Adult Authority may improperly release the defendant or speculate as to when he might be released.” (Id. at p. 647.) Thus, the Morse case distinguishes argument directed at the possibility of defendant’s rehabilitation, which is proper, from argument that emphasizes the possibility of defendant’s release, which is improper. The concern of the jury is whether or not defendant is fit to live, not with whether society is to be “ protected ’ ’ from hypothetical erroneous decisions of the parole authorities in the future.
The arguments set out above are strikingly similar to those we disapproved on defendant’s first appeal (People v. Treloar, 61 Cal.2d 544, 548 and fn. 2 [59 Cal.Rptr. 386, 393 P.2d 698]) as tending “to invite [the jury] to impose the death penalty in order to prevent the Adult Authority from mistakenly paroling defendant while he remained a danger to society. ’ ’ There, as here, the prosecutor stressed the " gamble ’ ’ of rehabilitation, the need to “protect society” and the past failure of the authorities to rehabilitate defendant. This time, the prosecutor merely avoided using the words " parole ” or “ Adult Authority. ’ ’ Once again, however, he attempted to convince the jury that the Adult Authority could not be trusted to protect the interests of society and might some day release defendant, even if he were not rehabilitated. The references to the “Department of Corrections” and its previous dealings with defendant, make it clear that the “gamble” that the jury was to reject was not that defendant might not be rehabilitated, but the possibility that ‘1 potential grievous harm . . . might result from the inadvertent parole of a defendant convicted of murder. ’ ’ The argument was not merely a “rhetorical device” as the Attorney General contends, but constituted an appeal to the jury to assume the responsibility of the Adult Authority and “decide if the defendant will be fit for release in the future. ...”